485 U.S. 25 (1988), 86-937, United States v. Robinson

Docket Nº:No. 86-937
Citation:485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23, 56 U.S.L.W. 4174
Party Name:United States v. Robinson
Case Date:February 24, 1988
Court:United States Supreme Court

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485 U.S. 25 (1988)

108 S.Ct. 864, 99 L.Ed.2d 23, 56 U.S.L.W. 4174

United States



No. 86-937

United States Supreme Court

Feb. 24, 1988

Argued November 3, 1987




At respondent's federal court jury trial, which resulted in his conviction of counts of mail fraud involving arson-related insurance claims, defense counsel urged several times in his closing argument that the Government had not allowed respondent (who did not testify) to explain his side of the story, and had unfairly denied him the opportunity to explain his actions. Out of the jury's presence, the prosecutor objected to defense counsel's remarks and contended that the defense had "opened the door" to commenting upon respondent's failure to testify. The judge agreed and respondent did not object. The prosecutor then, in his rebuttal summation, remarked that respondent "could have taken the stand and explained it to you." Defense counsel did not object and did not request a cautionary instruction, but the judge admonished the jury that no inference could be drawn from a defendant's election not to testify. The Court of Appeals reversed respondent's convictions, holding, inter alia, that the prosecutor's comment had deprived respondent of a fair trial under the Fifth Amendment.

Held: The prosecutor's comment did not violate respondent's Fifth Amendment privilege to be free from compulsory self-incrimination. The trial court reasonably interpreted defense counsel's closing argument remarks to mean that the Government had not allowed respondent to explain his side of the story either before or during trial. The prosecutor's statement that respondent could have explained his story to the jury did not, in the light of defense counsel's comments, infringe upon respondent's Fifth Amendment rights. Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant's silence, or to treat the defendant's silence as substantive evidence of guilt, Griffin v. California, 380 U.S. 609, holds that the privilege against compulsory self-incrimination is violated. But where, as in this case, the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by the defendant or his counsel, there is no violation of the privilege. Pp. 30-34.

794 F.2d 1132, reversed.

REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, STEVENS, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., filed an

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opinion concurring in part and dissenting in part. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 37. KENNEDY, J., took no part in the consideration or decision of the case.

REHNQUIST, J., lead opinion

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

During the course of respondent Robinson's mail fraud trial in the Middle District of Tennessee, his counsel urged in closing argument that the Government had not allowed respondent to explain his side of the story. The prosecutor, during his summation, informed the jury that respondent "could have taken the stand and explained it to you. . . ." App. 27. We hold that the comment by the prosecutor did not violate respondent's privilege to be free from compulsory self-incrimination guaranteed by the Fifth Amendment to the United States Constitution.

Following a jury trial in the United States District Court for the Middle District of Tennessee, respondent was convicted of two counts of mail fraud, 18 U.S.C. § 1341;1 both counts involved arson-related insurance claims. The evidence at trial showed that respondent leased a truck stop in Guthrie, Kentucky, in 1979. The business deteriorated over the next several months. Two days after respondent increased the insurance coverage on the truckstop, an explosion and fire destroyed the premises. A number of unusual

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circumstances suggested arson. Respondent subsequently submitted an insurance claim of $80,000.

Approximately one year later, respondent's home in Clarksville, Tennessee, was badly damaged by arson an hour after respondent had departed for California in a large truck filled with household furnishings. When interviewed by investigators, respondent denied setting fire to his house, and explained that he had removed the household furnishings to take them to his daughter in California. Respondent filed with his insurance company a proof of loss claim of $200,000, including a $106,500 personal property claim. Certain property included in this claim was later discovered by authorities in respondent's California home.

Respondent did not testify at trial. In his closing argument to the jury, the theme of respondent's counsel was that the Government had breached its "duty to be fair." Several different times, counsel charged that the Government had unfairly denied respondent the opportunity to explain his actions.2 Counsel concluded by informing the jury that respondent was not required to testify, and that, although it would be natural to draw an adverse inference from respondent's

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failure to take the stand, the jury could not and should not do so.

Following this closing, and out of the presence of the jury, the prosecution objected to the remarks of defense counsel and contended that the defense had "opened the door." The court agreed, stating:

. . . I will tell you what, the Fifth Amendment ties the Government's hands in terms of commenting upon the defendant's [108 S.Ct. 867] failure to testify. But that tying of hands is not putting you into a boxing match with your hands tied behind your back and allowing him to punch you in the face.

That is not what it was intended for, and not fair. I will let you say that the defendants had every opportunity, if they wanted to, to explain this to the ladies and gentlemen of the jury.

App. 25. Respondent did not object.

Following a short recess, the prosecutor gave his rebuttal summation. He began by stating that the Government had an obligation to "play fair," and had complied with that obligation in this case. Specifically, he stated:

[Defense counsel] has made comments to the extent the Government has not allowed the defendants an opportunity to explain. It is totally unacceptable.

He explained himself away on tape right into an indictment. He explained himself to the insurance investigator, to the extent that he wanted to.

He could have taken the stand and explained it to you, anything he wanted to. The United States of America has given him, throughout, the opportunity to explain.

Id. at 27. Defense counsel did not object to this closing and did not request a cautionary instruction. Nonetheless, the court included in the jury instruction the admonition that "no inference

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whatever may be drawn from the election of a defendant not to testify." Tr. 694.

The United States Court of Appeals for the Sixth Circuit reversed respondent's convictions, finding that the prosecutor's comment had "deprived the defendant . . . of a fair trial under the Fifth Amendment and 18 U.S.C. § 3481."3 716 F.2d 1095, 1096, 1097 (1983) (citing Griffin v. California, 380 U.S. 609 (1965), and Wilson v. United States, 149 U.S. 60 (1893)). The court held that, because the prosecution's reference to respondent's failure to testify had been "direct," it did not matter that it was made in response to remarks by defense counsel. This Court granted certiorari, vacated that judgment of the Court of Appeals, and remanded for reconsideration in light of United States v. Young, 470 U.S. 1 (1985). 470 U.S. 1025 (1985). There we held that improper remarks by the prosecutor -- in which he expressed his personal belief that the defendant was guilty -- did not constitute reversible error under the standard properly applicable. On remand, a divided panel of the Court of Appeals reinstated its prior judgment. 794 F.2d 1132 (1986). We granted certiorari, 479 U.S. 1083 (1987), to consider whether the remarks violated the Fifth Amendment,4 and, if so,

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whether the violation constituted plain error. Because we conclude that there was no constitutional error at all, we do not reach the plain error issue.

In Griffin v. California, supra, the defendant, who had not testified, was found [108 S.Ct. 868] guilty by a jury of first-degree murder. The prosecution had emphasized to the jury in closing argument that the defendant, who had been with the victim just prior to her demise, was the only person who could provide information as to certain details related to the murder, and yet, he had "`not seen fit to take the stand and deny or explain.'" Id. at 611. In accordance with the California Constitution, the trial court had instructed the jury that, although the defendant had a constitutional right not to testify, the jury could draw an inference unfavorable to the defendant as to facts within his knowledge about which he chose not to testify. Id. at 610. This Court reversed the conviction, ruling that the prosecutor's comments and the jury instruction impermissibly infringed upon the defendant's Fifth Amendment right to remain silent:

[Comment on the refusal to testify] is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused's knowledge is, in any event, natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.

Id. at 614 (citations omitted). The Court said that the Fifth Amendment

forbids either...

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